Posted
by
Unknown Lamer
on Tuesday July 17, 2012 @05:27PM
from the prepare-for-battle dept.

An anonymous reader writes "Last week, a Canadian Supreme Court decision attracted
attention for reduced copyright fees for music and
video. Michael Geist has a detailed analysis that concludes
there are two bigger, long term effects. First, Canada has
effectively now adopted
fair use. Second, the Supreme Court has made technological
neutrality a foundational
principle of Canadian copyright. The technological neutrality
principle could have an enormous long-term impact on Canadian
copyright, posing a threat to some copyright collective tariff
proposals and to the newly enacted digital lock rules."

It also depends on the amendment. While AC is correct about anything important, some amendments are easy to pass. eg renaming Newfoundland to Newfoundland and Labrador took a constitutional amendment but only Parliament and the legislature of Newfoundland were needed to pass it.

It's been done several times in my lifetime, and there's a bill before parliament right now to read "gender identity/expression" into the list of protected classes in section 15 of the Charter (which is part of the Constitution Act). That particular bill has been put forward/failed a few times under Harper, but this time it was put forward by a Con, and has passed 2nd reading, and many provinces have already made such alterations to their own human rights legislation, so it's kind of moot at this point for most Canadians.

It's nearly impossible to *buy* a change to the Constitution, but it's a bit disingenuous to say that the Constitution can't be changed, when it's already been changed several times in the last 30 years. Just that most of the changes that've been made have to do with equality rights, and are about increasing the rights afforded to people, not decreasing them. The real problem (or advantage, given the current discussion) is that even if a modification gets passed, the provinces can still invoke the Nothwithstanding clause.

Well, it's true that the Notwithstanding clause can provide a constitutional exception. However this kind of power is rarely exercised for the following reasons:

1). Notwithstanding was hugely controversial when it made it in to the constitution. It was placed there to mainly to allow Quebec to violate other terms of the constitution on language laws. That is very well known and understood; in order for a government to use Notwithstanding for other purposes or in other jurisdictions, they would probably have to fight an election over it;2). All Notwithstanding exceptions automatically expire. I forget, I think it's every 3-5 years. If you want to keep a Notwithstanding exception going, you have to pass new legislation and do the whole thing all over again;3). Canada is a parliamentary democracy in the Westminster tradition. Norms and cultural practices are important. Use of Notwithstanding is essentially an announcement, very publicly, that "we are going to go against the entire rest of the constitution. It's lawful but provocative."

By analogy, using Notwithstanding is like colouring outside the lines in your colouring book. You are attracting attention to yourself and your actions. At the governmental level, there will be long-term, perpetual pressure to avoid using such a tool.

In Canada, does their Supreme Court make laws? Or did the court just interpret an existing law which will be quickly altered to void this inconvenient decision?

It depends on how you define "make laws". Technically, the legislature in Canada is supreme - they make the laws. Just like in the US. But all laws are subject to the Constitution and more specifically the Charter, which means that they can be struck down by the judiciary; i.e. Canada has de facto judicial supremacy. And of course, the common law is judge-made law, just as it is in every common law country.

But in this case, yeah, the legislature can just go ahead and introduce a new law that it thinks will pass the judicial test. That's how the system is supposed to work anyway.

In Canada, does their Supreme Court make laws? Or did the court just interpret an existing law which will be quickly altered to void this inconvenient decision?

It depends on how you define "make laws". Technically, the legislature in Canada is supreme - they make the laws. Just like in the US. But all laws are subject to the Constitution and more specifically the Charter, which means that they can be struck down by the judiciary; i.e. Canada has de facto judicial supremacy. And of course, the common law is judge-made law, just as it is in every common law country.

But in this case, yeah, the legislature can just go ahead and introduce a new law that it thinks will pass the judicial test. That's how the system is supposed to work anyway.

But the constitution is irrelevant in this case, this case was all about regular law. So this is about common law, which is what the judges use to interpret the laws passed by parliament. So Parliament can absolutely void all of this by changing th statutes.. But the last time time they touched copyright law, it was hugely controversial, so I don't expect this government or any government to expand political capital doing that in the near future.

I've heard the theory that the digital locks part of the copyright law is unconstitutional as (the way it is written) it deals with property and property, according to (I believe) the Canada Act of 1867 (part of our constitution) is the domain of the Provinces.

Well put. Similarly the Supreme Court can strike down a law passed by the House Of Commons or provincial Legislative Assemblies on the grounds that it violates the Constitution, Charter Of Rights & Freedoms, or provincial jurisdictions etc, however the Supreme Court can't introduce new law, only alter existing ones to suit evolving judicial interests and the Constitution and Charter. That's gotta feel pretty good, the "I know better, nyah nyah" part. That's why they don't wear pants under the robes.

This court is generally used to put laws under the microscope (generally speaking) when it comes to the constitutionality of the law in question; the other major use is when there's an issue that challenges the division of power between the Federal and Provincial governments.

Most frequently the Court hears cases of national importance or where the case allows the court to settle an important issue of law (such as the issue at hand.)

First, the highest law in Canada is the Constitution. We have our own, it's a little different than yours.

A close second is the Supreme Court of Canada (SCC). To get there, you'd have to have a court case in your provincial Supreme Court, then appeal that to the Appeal Court of your province, and then up to the Supreme Court of Canada. What the SCC says goes, and it's binding on the country basically forever.

Parliament can pass laws, but they have to be brought in three times, with a quick stint through the Senate in between each "reading". After the third reading, the Governor General (Her majesty's representative in Canada) gives Royal Assent. This is basically 100% guaranteed, the GG will not refuse to pass a law that's been passed by Parliament and the Senate. It COULD happen, in theory, but it's got less chance than all the man pages in Linux being done by lunchtime tomorrow by volunteers from Microsoft.

So, that's how we get new laws in Canada. Laws that are against the Constitution get picked up by court cases and then eventually end up in the SCC. One famous case is Insite, which allows safe drug use in provincially-run clinics and may be one of the most important court cases in Canadian History. Anyway, the SCC will decide whether a law passed by Parliament is valid under Canadian Law. Remember what I said about the Constitution? You can't violate it, The End. That includes our Charter of Rights and Freedoms, which is really close to your Bill of Rights but with less ammo and more privacy.

Now, the government has just passed an updated Copyright Act, which the SCC went over and changed to be a little more suitable with Canada's higher laws. That's what the two links in the article detail, so I won't go into them again. The thing is that Parliament won't open it up again, as far as Canada's concerned it's a done deal.

Yeah just don't forget S.1 of the Charter.1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Always puts a damper on stuff, it can be good or it can be bad. Though it's always the courts that ends up being the counter to the government as we see in cases like this. I said oh 3 months back that this is what would happen, and it did. The sys

Posting as AC because I usually just lurk, so I have no ID...Sadly, we do have section 33, which would be in character for the current federal government (control freaks) to use. However, this would be political suicide in the long run.http://en.wikipedia.org/wiki/Section_Thirty-three_of_the_Canadian_Charter_of_Rights_and_Freedoms

First, the highest law in Canada is the Constitution. We have our own, it's a little different than yours.

It's quite different as it encompasses a few documents.The British North America Act of 1867 (now named the Constitution Act of 1867, http://en.wikipedia.org/wiki/Constitution_Act,_1867 [wikipedia.org]) outlines the basic form of our government including the division of powers between the feds and the provinces. It was an Act of the British Parliament and until 1982 could only be amended by the British Parliament.The Statute of Westminster (passed by the British Parliament in 1931, applied to Canada on passing, http://en.w [wikipedia.org]

They can rule laws unconstitutional, often suspending judgement for a period to give Parliament a chance to rectify the law. Previous governments also often asked the Supreme Court to rule on a laws constitutionally before it becoming a law. This government just passes laws and then acts abashed when they're struck down, with the theory that they can pass laws faster then the Supreme court can review them.

The SCC can look at a law in question and determine if it is in keeping with the Constitution. If said law conflicts with the Constitution, then it is considered invalid. The Constitution is supreme.

It can be changed, and has been some number of times. Some changes are relatively easy to make, where a change pertains only to one province. Other changes that involve multiple provinces are harder, but still doable. One of the hardest changes to make is the position of the Governor General, which requires unan

Currently, no. because DVDs contain "digital locks" the new copyright law removes the right you had under the previous law to do just that.However, what this court case demonstrates is that the Supreme Court does have some sense of reason and therefore there is a chance that if someone does challenge the digital locks provision all the way to the supreme court, it may be overturned which would make it legal to once again use the media you already paid for in whatever way you want. Basically though the new copyright law is still too new for any of it to have made it's way all the way to the Supreme Court, so we won't get to find out for sure for a while yet (my best guess... 10 years... which of course also likely means a completely different set of judges on the supreme court, so it's hard to say for sure...)

My Nexus 7 arrived today. It comes preloaded with a copy of "Transformers: Far side of the moon" for my viewing pleasure. Five minutes into viewing it there was a popup advising the battery is low. So I go get the USB cable and plug it in. Now the movie won't play, it says "Couldn't load licence key (error 16)". Bah. So all the smart boys and all the smart girls over at Google can't make DRM work properly. Can anybody make DRM work properly? Does DRM have any right to life whatsoever?

Canada is heading towards making DRM illegal. Good for Canada, and a perfect example why.

I didn't have network issues, the connection was still good. Something about the DRM was broken. It fixed itself after I rebooted for the upgrade, but the takeaway is... DRM is the enemy of good user experience.

Your experience mirrors mine with DRM'ed stuff. I can not count on it to work. While annoying for a movie or music, it can be a real show-stopper if its critical business software.

You nailed the primary reason I insist on NO DRM on anything I have - especially critical software. So far, I have been fortunate to find open-source, free ( Linear Technology SPICE ) or non-DRM solutions ( Eagle Schematic/PCB ) which I feel confident I can count on to work when I have a job to do.

My Nexus 7 arrived today. It comes preloaded with a copy of "Transformers: Far side of the moon" for my viewing pleasure. Five minutes into viewing it there was a popup advising the battery is low. So I go get the USB cable and plug it in. Now the movie won't play, it says "Couldn't load licence key (error 16)". Bah. So all the smart boys and all the smart girls over at Google can't make DRM work properly. Can anybody make DRM work properly? Does DRM have any right to life whatsoever?

You not only miss his point completely, you seem to be actively avoiding it. His point is that there should be no need whatever for the damned movie to phone home. There should be no reason you should have a net connection to watch a movie or play a single player game.

DRM helps nobody except the folks giggling that the DRM they wrote is raking in cash from clueless morons in the entertainment industry even though it can't possibly do what it's designed to do. All DRM can do is anno

Perhaps I am missing the point. Just seems to me that at that point, Google would be actively distributing tools to circumvent their own DRM.

I hate DRM as much as any other Slashdotter, but the fact of the matter is Google wants it to be as difficult as possible to break their stuff free. Besides which, the Nexus 7 is already a deprecated media tablet (no microSD, no USB host, no CIFS afaik), so it seems silly to get pissed when the DRM system breaks. That's what you're getting when you buy the Nexus 7 -

I think you're misinterpreting the judgement. What I'm getting from it is that whatever technology is being used for the item at hand—in this case, a movie— must not be any more onerous than if you owned a physical copy. Companies will still have the right to try and prevent you from creating an unlimited number of copies and profiting off of that, but if you're using it in your own home, it is unreasonable for them to make it significantly difficult for you to enjoy your own property.